the sake of completion. Thus the law of war can also be construed systematically. One can enter it as an appendix to the international legal order, in so far as one does not wish to separate it entirely from international law. Nor is the situation at all changed in principle by the fact that this appendix is comparatively large in compass. It simply indicates that the legal order between peoples has not yet progressed as far as between individuals, and that self-help therefore still occupies a large place in the former. But it also points out clearly where the real future tasks of humanity lie; for one would think that in this respect no doubt can exist to-day, that the development will be in favour of law and opposed to self-help, and that it is, therefore, more important to develop international law farther than the law of war. The separation of the two fields can in turn only help to simplify the recognition of this fact, where it may still be lacking.1 For this reason also, I should like to recommend here the separation of the two. 1 Among those who do not yet acknowledge this is Zorn, as his article (reprinted in the appendix to this book) in the Neue Zürcher Zeitung for August 12, 1916, shows. He finds it almost amusing' that I have designated the regulating of the law of war as opposed to the development of international law as a side issue. Bornhak, too, in Der Wandel des Völkerrechts, 1916, p. 3, writes: Not in a dismissal of war by a compulsory court of arbitration whose sentence no one can execute, nor in general disarmament, for which there is no standard, was there to be found a reasonable development of the law of war, but rather in the ennoblement of the forms of warfare.' INTERNATIONAL LAW I OLD POSTULATES THE Condition of peace between states is for international law the normal condition. Since it is only in this condition that a real rule of law seems possible between nations, it must therefore also be to the interest of the international legal order that this condition be maintained. The maintenance of the state of peace, the prophylaxis against war, seems from this point of view then as the chief problem of international law. In this the law of international procedure is of the greatest service.1 As in all provinces of law, one can also distinguish in the field of international law between the material and the formal or the law of international procedure, the latter of which has to do with the procedure for the settlement of international disputes. It is the purpose of international law not only to set up rules for international intercourse but also to bring to a decision, by way of law, disputes between states. Even in disputes, the field of law is not to be abandoned. This appears as one of the main tasks. Where it does not succeed, there international law also fails; there selfhelp or war begins. One should keep as long as possible within the province of law. The goal in view is, of course, that it will 2 1 In respect to material international law, Triepel, loc. cit., pp. 11 ff., thinks no great prophetic vision was needed to predict that the larger part of international law, the law of peace, would, upon the conclusion of the war, move along in exactly the same channel as before. The coming changes would in no way affect the fundamental ideas that have hitherto been the impelling forces in international law. In spite of all the devastations which the war may have brought on in the economy of the states and in the souls of the people taking part in it, the threads which world trade has spun will not have been so torn that they cannot again be tied together; the necessity for mutual restoration of the separated systems of industrial economy will tend to assert itself more strongly than the mutual hatred of peoples. I, too, believe that. This does not, however, detract from the fact that new tendencies will be added which consist mainly in a decided accentuation of the idea of law. 2 Strupp in his Neue Probleme des Völkerrechts, 1916, p. 2, proposes the term Kriegsverhütungsrecht [law for the prevention of war]. never be abandoned, but we are to-day still far from that goal. In the meantime it is our business to prevent as far as possible a departure from the province of law, which is identical with a strengthening of the idea of law in international relations, with a strengthening of the rule of law in the life of nations. From all this it follows that the most essential tasks which confront the development of international law after the war will have to be in the province of international procedure. The development of procedure in international disputes appears to be the real problem to be solved after this war in the field of international law. In what manner this development might proceed I have set forth in detail in my work dedicated to that subject.3 In that work I designated this development as the most important problem in the international law of our day. There is no problem in the field of international law that makes so urgent an appeal to the co-operation of science and the states, and whose solution might become of such great and eventful significance for the combined international and cultural life of the present and the future. . . . The chief problem which international law still has to solve and the solution of which has in part at least, so it seems, been reserved for our day, is this normalization of procedure in international disputes, the creation of a system of international judicature.' That this is the most important task for international law and that our present time is called upon to find a solution for this problem is a fact that has also been recognized at the Hague Peace Conferences. The work in international law at these conferences concerned the normalization of the procedure of international law. The most important of the Hague Conventions deals with the peaceful settlement of international disputes. In the discussion of international procedure and of the possibili 1 Contrary to the statements here offered, Triepel, loc. cit., thinks that the development in this field has already reached a limit beyond which, according to the nature of things, it will be unable to go. Herein Triepel is in opposition to a demand which is to-day expressed throughout the whole world, and to which even the German Imperial Chancellor dared not refuse to give heed. 2 Lammasch, too, in 'Das Mediationsrecht der Neutralen' in the Oesterreichische Zeitschrift für öffentliches Recht, 1915, p. 241, stresses the fact that it has been shown that the law to make war needs regulation, not indeed in an idealistic sense but in a realistic one corresponding to the hard actualities. 3 Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten. Ein völkerrechtliches Problem der Gegenwart, speziell im Hinblick auf die Haager Friedenskonferenzen, erörtert von Ötfried Nippold, Leipzig, 1907. |